Prosecuting Ratesters and Banksters

February 7th, 2013 by Phil Mattera

The U.S. Justice Department’s action against Standard & Poor’s is a welcome, if long overdue, step in the prosecution of the rating agencies, which were some of the key culprits in the financial meltdown of 2008 and the ensuing economic slump.

There are both encouraging and disheartening aspects of the case. DOJ is making use of a law enacted in the wake of the savings & loan scandals of the 1980s—the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA)—which permits it to seek penalties up to the amount of the losses suffered as a result of the alleged violations. During the period covered by the complaint, federally insured financial institutions suffered an estimated $5 billion in losses from the collateralized debt obligations that S&P is charged with giving inflated ratings. In other words, S&P may very well face a multi-billion-dollar hit.

On the other hand, despite the statement by Attorney General Eric Holder (photo) that the firm’s conduct was “egregious,” this is a civil rather than a criminal case, which means that no S&P executives will go to prison and S&P will be able to return to business as usual after it absorbs the financial blow. This is a repeat of the approach taken in the cases filed against the big banks.

At the press conference announcing the case, the head of DOJ’s civil division, Stuart Delery, noted that FIRREA allows prosecutors to seek civil penalties even though many of the underlying offenses are criminal in nature, including mail fraud, wire fraud and bank fraud. This, Delery emphasized, means that DOJ will have a lower burden of proof in making its case.

That’s convenient for prosecutors, but it lets S&P off a very large hook. Why couldn’t DOJ have brought civil and criminal charges?

Another limitation of this case, along with previous ones filed by DOJ, is that the rating agencies and the banks and investment houses that exploited their inflated ratings to peddle toxic assets are not being prosecuted at the same time. The use of separate cases means that the collusion between the groups—which can be called banksters and ratesters—is less likely to come to light.

A more aggressive approach was taken in a private suit filed back in 2008 against both a major investment house—Morgan Stanley—and the leading rating agencies—S&P and Moody’s. The case, which is still making its way through federal court, alleged that Morgan worked closely with the agencies to be sure that the large package of risky mortgage-backed securities it was selling to institutional investors received a better rating than it deserved. The plaintiffs allege that Morgan paid the agencies three times their usual fee to, in effect, guarantee that the securities would be highly rated.

To try to get around the clear implication of conflict of interest and collusion, the agencies fell back on the far-fetched claim that their ratings are a form of speech covered by the First Amendment, while Morgan tried to pin the blame on the agencies. As Gretchen Morgenson of the New York Times noted in a piece about the case last July, documents that emerged in the case showed that Morgan bullied the agencies to raise the grade they attached to the securities.

It is no surprise to learn of Morgan’s behavior. The investment house has a long history of arrogance and insistence on getting its own way. It also has a long record of cutting corners when it comes to the protection of the interests of its customers, as can be seen in the frequent fines it has paid to industry and government regulators. For example, in 2007 Morgan had to pay $7.9 million to settle SEC fraud charges relating to its failure to get retail investors the best prices possible on more than 1 million over-the-counter transactions. In 2009 Morgan was fined $3 million and ordered to pay more than $4.2 million in restitution to resolve charges that its brokers persuaded employees of Eastman Kodak and Xerox to take early retirement based on misleading investment projections.

Morgan, which once dealt exclusively with the country’s largest corporations, later got caught up with predatory lending by purchasing Saxon Mortgage Services. In 2011 Saxon had to pay $2.35 million to settle charges that it violated federal law by foreclosing on the homes of active duty military personnel without first obtaining required court orders. Last month, Morgan agreed to pay $227 million to settle other charges of loan servicing and foreclosure abuses by Saxon (which it no longer owns).

The inescapable conclusion is that the investment houses, the banks and the rating agencies all have a high degree of culpability for reckless and fraudulent practices. Prosecuting them together as criminal co-conspirators will be the only way to bring some justice to the financial sector.

Note: This piece draws from my new Corporate Rap Sheet on Morgan Stanley, which can be found here.